By: Wendy G. Adkins and Matthew R. Miller
The National Labor Relations Board (“NLRB”) reversed a significant 2020 decision and revived its earlier decisions affording employees different treatment when engaging in abusive or offensive conduct in the course of protected Section 7 activities. Specifically, employers may be prohibited from addressing abusive or offensive conduct by an employee in the course of protected activities, even if the same abusive or offensive conduct by an employee in the course of non-protected activities can be addressed.
The 2020 General Motors decision adopted a motive-focused test, allowing an employer to address misconduct by an employee during protected activity absent evidence that the adverse action was motivated by anti-union sentiment. This motive-focused standard afforded the employer the ability to consistently address abusive or offensive conduct by an employee in the workplace.
Earlier this week, in Lion Elastomers LLC II, the NLRB returned to a setting-specific test, applying the following four factors to determine whether abusive or offensive conduct by an employee during protected activity loses Section 7 protection: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.” In doing so, the NLRB affords different treatment to abusive or offensive conduct by an employee in the workplace, if such conduct is undertaken as part of protected activity. The NLRB noted that employee discipline may pass this test when the employee’s behavior disrupts workplace meetings or is in violation of a security policy even if the behavior was related to Section 7 activity.
Proponents of the General Motors decision, including a dissenting Board member in Lion Elastomers LLC II, point out that the General Motors motive-based test is necessary to allow employers to comply with federal antidiscrimination laws by suggesting that the setting-specific standard may prevent an employer from disciplining or discharging an employee who engages in discriminatory conduct based on race, color, religion, sex, national origin, age, or disability.
Employers must consider the totality of the circumstances and identify the correct standard of review when confronted with abusive or offensive employee conduct before taking any adverse employment action. Employers should also review their discrimination, harassment, and workplace violence/security policies to detail specific types of conduct that are strictly prohibited to further safety and prevent unlawful discrimination and harassment in the workplace.